00-1240 Richard E. Wilson v. TOWN OF MENDON, JAMES CROSBY, and DENNIS GRADY

United States Court of Appeals
For the First Circuit
Nos. 00-1077
00-1239
00-1240
RICHARD E. WILSON,
Plaintiff, Appellant,
v.
TOWN OF MENDON, JAMES CROSBY, and DENNIS GRADY,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Charles B. Swartwood, III, U.S. Magistrate Judge]
Before
Torruella and Lipez, Circuit Judges,
and Stearns*, District Judge.
Stephen B. Hrones, with whom Aderonke O. Lipede and Hrones &
Garrity were on brief for appellant.
Leonard H. Kesten, with whom Deidre Brennan Regan and Brody,
Hardoon, Perkins & Kesten were on brief for the Town of Mendon and
Dennis Grady, appellees; Stephen C. Pfaff, with whom Merrick,
Louison & Costello were on brief for James Crosby, appellee.
June 17, 2002
_______________________
*Of the District of Massachusetts, sitting by designation.

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1Peyton Place (Doubleday, 1956).
2Wilson appeals from the final judgment entered in favor of
the Town of Mendon, Crosby and Chief Grady. He has not appealed
the verdict favorable to Sweet.
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STEARNS, District Judge. This case, which unfolded
against a backdrop of small town intrigue that would have excited
the imagination of Grace Metalious,1 raises interesting questions
about bifurcation, a common practice in police civil rights cases,
and the extent to which the parties to a case may be bound on
appeal by their strategic choices at trial.
After a drunk driving arrest and a station house
altercation, plaintiff-appellant Richard Wilson sued the Towns of
Mendon and Hopedale, their respective chiefs of police, and five
Mendon and Hopedale police officers. Prior to trial, Magistrate
Judge Swartwood, presiding with the parties’ consent, bifurcated
Wilson’s claims against the individual defendants from his claims
against the Towns. As the trial date approached, the roster of
defendants shrank. Ultimately, a jury entered verdicts in favor of
defendant-appellee James Crosby, a Mendon police officer, and
Stephen Sweet, a Hopedale police officer, on claims that they had
used excessive force in subduing Wilson.2 The jury also found for
defendant-appellee Dennis Grady, the Mendon Chief of Police, on
claims of negligent training and supervision. Following the
verdict, Magistrate Judge Swartwood entered judgment for all
defendants including the Town of Mendon.

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Wilson raises four issues on appeal. He claims
reversible error in: (1) the Magistrate Judge’s refusal to submit
a special verdict question to the jury regarding a non-defendant
officer’s alleged use of excessive force; (2) the court’s refusal
to permit expert testimony on the same subject; (3) the court’s
refusal to instruct the jury on theories of joint venture and
failure to intervene; and (4) the court’s refusal to strike
disparaging comments made during closing argument about one of
Wilson’s lawyers. While we are of the view that the trial court
was mistaken about the law in one respect, we discern no prejudice,
and we therefore affirm the verdict.
I. BACKGROUND
A. Relevant Facts
We recite the facts in the light most favorable to the
verdict. Ferragamo v. Chubb Life Ins. Co., 94 F.3d 26, 27 n.1 (1st
Cir. 1996). On May 18, 1996, officer James Crosby, while on patrol
on North Street in Mendon, Massachusetts, observed a green
convertible stray across the double yellow median line and then
drift back to the shoulder of the road, narrowly missing a parked
vehicle. Crosby activated his auxiliary lights and signaled the
car to stop. On approaching the driver’s side of the car, Crosby
detected a mild odor of alcohol. Crosby observed a passenger,
Nancy Wilson, lying face down with her head wedged between the
convertible’s front bucket seats. When Crosby asked the driver,
Richard Wilson, whether his female passenger was all right, he

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3Nancy Wilson was taken by ambulance to the station after she
began to vomit. She was released to her father’s custody before
the altercation at the station began.
4Wilson had difficulty performing a heel-to-toe test, and
spoke in a thick-tongued and studied manner while reciting the
alphabet.
5Crosby’s intent was to manacle Wilson’s legs.
-4-
replied, "she’s f’in cocked." Crosby summoned officer Kristen
Carchedi to the scene to attend to Nancy Wilson. Officer Sherri
Tagliaferri also responded to the call, and assisted Carchedi and
Crosby in taking Nancy Wilson into protective custody.3
At Crosby’s request, Richard Wilson produced a valid
driver’s license but was unable to locate the vehicle’s
registration papers. Suspecting that Wilson might be intoxicated,
Crosby directed him to perform several field sobriety tests. The
results were sufficiently suggestive to cause Crosby to place
Wilson under arrest for operating under the influence.4 Upon being
placed in the rear compartment of Crosby’s cruiser, Wilson began
screaming epithets and slamming his body against the back of the
seat.
At the station, while Crosby was completing booking
formalities, Wilson again became belligerent. Crosby escorted him
to a cell. Once inside, Wilson began to kick at the cell door.
Crosby ordered Wilson to stop. When Wilson persisted in kicking at
the door, Crosby ordered him to step out of the cell.5 Wilson
refused to comply. Officer Tagliaferri then attempted to flush

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6Pepper gas, or oleoresin capsicum, is an aerosol spray made
from an oily extract of the capsicum pepper plant. When inhaled,
it induces coughing, a gagging sensation, and an inability to
vocalize. It is a less powerful version of the irritant gases
marketed under the trade name Mace, and its use is authorized under
standard police protocols in less threatening instances than those
in which the use of Mace is sanctioned.
7Crosby and the two female officers, Carchedi and Tagliaferri,
were the total Mendon complement then on duty.
8For conceptual clarity, we will refer to a first spraying
incident, the one involving Crosby and Tagliaferri, and a second
spraying incident involving Carchedi.
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Wilson from the cell by spraying him with pepper gas.6 Unable to
find her target, Tagliaferri gave the gas cannister to Crosby, who
after several attempts, succeeded in squirting the gas in Wilson’s
face. Wilson responded with a tirade of threats and obscenities.
Alarmed by the ferocity of Wilson’s outburst, Crosby asked that
reinforcements be summoned from the neighboring Town of Hopedale.7
Wilson in the meantime succeeded in kicking open the door
of the cell. He then rushed into the vestibule of the cellblock
with Crosby and Tagliaferri in hot pursuit. Crosby leapt on
Wilson’s back while Tagliaferri grabbed Wilson’s feet. Wilson and
the officers tumbled to the floor where the scrimmage continued.
Carchedi, who was not present when the struggle began, suddenly
appeared, and from a crouching position let loose a spray of pepper
gas, hitting Wilson and Crosby in the face.8 Crosby and
Tagliaferri eventually succeeded in manacling Wilson's legs.
At some point during the struggle, Wilson suffered a cut
to his chin, prompting Crosby to request that an ambulance be

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9Wilson’s testimony at trial portrayed Crosby in a less
flattering light. According to Wilson, he began voluntarily
walking towards the cell after Crosby refused him permission to
make a telephone call to his uncle, a police detective in a
neighboring town. Enraged, Crosby shoved Wilson against a wall,
knocked him to the ground, and dragged him into the cell with his
hands cuffed behind his back. Once in the cell, Crosby kneed
Wilson in the ribs and punched him several times. Wilson admitted
to shouting obscenities and kicking at the cell door in response to
Crosby’s taunts, but claimed to have regained his composure when
Crosby, without warning, opened the cell door and sprayed several
jets of pepper gas, striking Wilson in the face on the third
attempt. Crosby threw Wilson against the wall before leaving the
cell. Wilson succeeded in kicking the cell door open to escape
from the fumes. He then ran into the vestibule searching for Nancy
Wilson. Crosby jumped him from behind, while Tagliaferri tackled
his legs. Wilson testified that after he was wrestled to the
floor, Carchedi ordered Crosby to lift his [Wilson’s] head so that
she could spray him in "the f’in face." Crosby wrenched Wilson’s
head back while Carchedi sprayed both men in the face. Wilson
stated that he could not recall how he had sustained the laceration
to his chin, but was certain that it had not happened during the
struggle in the vestibule. Wilson testified that after later
viewing a video surveillance tape of the incident with one of his
attorneys, he had come to the realization that his chin had been
cut when he was kicked in the head by officer Sweet after being
unshackled from the restraining bar. Significant aspects of
Wilson’s trial testimony were inconsistent with his deposition
testimony and the allegations made in the complaint. Appellees
claim that Wilson altered or enlarged his earlier testimony after
he realized that it was contradicted by the surveillance tape.
Although rejected by the jury, we recite the gist of Wilson’s trial
testimony for its relevance to the issues of the propriety of Chief
Grady’s counsel’s closing argument and the omitted instruction on
Crosby’s failure to protect Wilson from Carchedi.
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called.9 While waiting for the ambulance, Crosby handcuffed Wilson
to a restraining rail, after which Wilson spat at him. Once the
ambulance arrived, Crosby unshackled Wilson from the rail, and
placed him prone on the floor. Officer Sweet, who was assisting
Crosby, restrained Wilson by placing his foot on Wilson’s back.
Wilson was taken, still manacled, by stretcher to the ambulance.
Crosby accompanied Wilson to the hospital. During the ambulance

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10The hospital record noted no injury to Wilson other than the
chin laceration.
11The Massachusetts Tort Claims Act, Mass. Gen. Laws ch. 258,
§ 4 (ch. 258), provides in pertinent part that:
A civil action shall not be instituted against a public
employer on a claim for damages under this chapter unless
the claimant shall have first presented his claim in
writing to the executive officer of such public employer
within two years after the date upon which the cause of
action arose.
Presentment is a statutory condition precedent to the bringing
of a lawsuit against a municipality under the Act. Vasys v. Metro.
Dist. Comm’n, 387 Mass. 51, 55 (1982). The Act is a limited waiver
of the immunity of the Commonwealth and its political subdivisions
from suit. The practical effect of ch. 258 is to substitute the
governmental employer for the employee as the defendant and to
release the employee from personal liability. The Act immunizes a
municipal employee from liability for acts of ordinary and gross
negligence, but not for acts of an intentional nature. Mass. Gen.
Laws ch. 258, § 10(c).
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ride, Wilson screamed threats and obscenities and spat at Crosby.
Wilson was treated at the hospital for the cut to his chin.10
B. Procedural History
On April 29, 1997, Wilson served notice on the Mendon
Board of Selectmen of his negligence claims against the officers
and his intent to seek damages from the Town.11 Wilson gave similar
notice to the Hopedale Board of Selectmen on November 5, 1997. On
May 12, 1998, Wilson filed a complaint against the Towns of Mendon
and Hopedale and Mendon officers Crosby, Sergeant Philip Dunlavey,
and Chief Grady. The complaint also named as defendants Hopedale
officers Sweet, Todd Boldy and Mark Boldy, as well as Eugene

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12Summary judgment was granted to the Boldys on October 27,
1999. Wilson states in his brief that he voluntarily dismissed his
claims against the Town of Hopedale prior to trial, although this
is not borne out by the trial transcript or the relevant docket
entries. In any event, Wilson does not contend that the verdict
for Sweet is not conclusive of his claims against Hopedale.
-8-
Costanza, the Hopedale police chief.12 Carchedi and Tagliaferri
were not named as defendants.
The complaint, in twenty counts, accused the defendant
officers of federal and state civil rights violations. The chiefs
of police were alleged to have failed to properly train and
supervise their officers. Wilson also brought negligent training
claims against the Towns, as well as numerous common law claims
against the defendant officers, including claims for assault and
battery, conversion, malicious prosecution, false arrest, false
imprisonment, abuse of process, negligent and intentional
infliction of emotional distress, invasion of privacy, defamation,
negligence, and civil conspiracy.
On September 21, 1999, Magistrate Judge Swartwood
bifurcated the claims against the named officers and their
supervisors from the municipal liability claims. On December 6,
1999, trial commenced on the excessive force claims involving
Crosby and Sweet, and on the negligent supervision and training
claims involving Chief Grady.
During the trial, the court disallowed expert testimony
and denied a request for a special verdict question regarding
Carchedi’s alleged use of excessive force. The court also refused
to instruct the jury that Crosby could be found liable as a joint

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13 42 U.S.C. § 1983 provides that:
Every person who under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory
or the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation
of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party
injured in an action at law. . . .
-9-
venturer with Carchedi or for having failed to intervene to protect
Wilson from Carchedi. Wilson duly objected. On December 17, 1999,
the jury returned a verdict in favor of Crosby, Sweet, and Chief
Grady. On December 21, 1999, judgment was entered for the Town of
Mendon. This appeal followed.
II. DISCUSSION
A. Principles of Liability
A person may recover damages from a state or local
official who, while acting under color of state law, commits a
constitutional tort. 42 U.S.C. § 1983;13 see also Bivens v. Six
Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 389
(1971) (imposing similar liability on federal officers). The
excessive use of force by a police officer against an arrestee is
such a tort. See Graham v. O’Connor, 490 U.S. 386, 395-396 & n.10
(1989). An officer may be held liable not only for his personal
use of excessive force, but also for his failure to intervene in
appropriate circumstances to protect an arrestee from the excessive
use of force by his fellow officers. Gaudreault v. Municipality of
Salem, 923 F.2d 203, 207 n.3 (1st Cir. 1990). Liability will
attach to the municipal employer where its failure to properly

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train its officers "amounts to deliberate indifference to the
rights of persons with whom the police come into contact," and
where a specific deficiency in training is the "moving force"
behind a constitutional injury. City of Canton v. Harris, 489 U.S.
378, 388-389, 391 (1989). A supervisory officer may be held liable
for the behavior of his subordinate officers where his "action or
inaction [is] affirmative[ly] link[ed] . . . to that behavior in
the sense that it could be characterized as <supervisory
encouragement, condonation or acquiescence’ or <gross negligence
amounting to deliberate indifference.’" Lipsett v. University of
P.R., 864 F.2d 881, 902 (1st Cir. 1988) (internal citation
omitted). If, however, the officer has inflicted no constitutional
harm, neither the municipality nor the supervisor can be held
liable. City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986)
(per curiam).
B. Officer Carchedi
Wilson’s principal argument on appeal is directed to the
refusal of the trial court to permit the jury to consider theories
of excessive force liability involving Carchedi directly or
indirectly. That Carchedi had sprayed Wilson (and Crosby) with
pepper gas during the scuffle in the cellblock was not late-
breaking news. Wilson’s April 29, 1997 presentment letter to the
Town of Mendon asserted that Carchedi had "maced" him in the face,
causing him to fall "face-first to the floor," allegations that

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14The inconsistency with Wilson’s testimony at trial, where he
claimed to have been "maced" by Carchedi while lying prone on the
floor, was amply exploited by the defense.
15In phasing the trial of the case, the court will ordinarily
phase discovery as well. Reopening discovery on a plaintiff’s
municipal liability claims remains an option in the unlikely event
that the municipality chooses not to satisfy an adverse phase one
judgment.
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were repeated in the complaint.14 Carchedi (and Tagliaferri) were,
however, portrayed in the presentment letter and complaint as brave
officers who had come "forward with the truth," only to be
"ridiculed, harassed, ostracized, and silenced" for their temerity.
Neither Carchedi nor Tagliaferri was named as a defendant in the
complaint.
As previously noted, Magistrate Judge Swartwood had
bifurcated the individual claims against the defendant officers
from Wilson’s claims against the municipal defendants. In this
regard, the court was treading a familiar path. Without a finding
of a constitutional violation on the part of a municipal employee,
there cannot be a finding of section 1983 damages liability on the
part of the municipality. Heller, 475 U.S. at 798-99. Thus, a
defendant’s verdict in a bifurcated trial forecloses any further
action against the municipality, resulting in less expense for the
litigants, and a lighter burden on the court.15 On the other hand,
a verdict against the municipal employee will almost always result
in satisfaction of the judgment by the municipality because of the
indemnification provisions typically found in bargaining agreements
between municipalities and their employee unions.

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16The cases cited by Wilson for the proposition that a section
1983 action may be prosecuted against a municipality in the absence
of a named tortfeasor stand for a somewhat different principle, the
right of a plaintiff to proceed against a "John Doe" defendant
whose identity can only be established through discovery. This
principle of fairness recognizes that a plaintiff in the heat of a
confrontation with police may not know or have the opportunity to
learn the identity of the alleged wrongdoer. Once that identity is
discovered, a plaintiff is permitted under the liberal regime of
Rule 15 to substitute the true defendant for the fictitious "John
Doe." See, e.g., Carmona v. Toledo, 215 F.3d 124, 136 (1st Cir.
2000) (reversing a district court for refusing to permit such an
amendment); cf. Figueroa v. Rivera, 147 F.3d 77, 83 (1st Cir. 1998)
(A district court "is not obligated to <wait indefinitely for [the
plaintiff] to take steps to identify and serve . . . unknown
defendants.’") (quoting Glaros v. Perse, 628 F.2d 679, 685 (1st
Cir. 1980)). As its caption implies, Bivens was such a "missing
persons" case. See Carol M. Rice, Meet John Doe: It Is Time for
Federal Civil Procedure to Recognize John Doe Parties, 57 U. Pitt.
L. Rev. 883, 886-887, 895-897 (1996).
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There is, however, nothing to prevent a plaintiff from
foregoing the naming of an individual officer as a defendant and
proceeding directly to trial against the municipality. Something
of the sort happened in Beck v. City of Pittsburgh, 89 F.3d 966,
967 (3d Cir. 1996), where, after bifurcation, the plaintiff’s phase
one case against the defendant officer ended in a mistrial.
Plaintiff then dismissed the case against the officer, and was
permitted to proceed against the city on the claim that it had
tolerated a custom and policy of condoning the use of excessive
force by its officers, among them the original defendant.16
The added expense aside, the reasons that plaintiffs
almost never choose to proceed against the municipality directly
are self-evident. The predicate burden of proving a constitutional
harm on the part of a municipal employee remains an element of the
case regardless of the route chosen and is much easier to flesh out

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17This is not meant to be dismissive of appellees’ argument.
There is, at first blush, a visceral unease at the idea that a
person’s conduct can be the subject of a jury’s condemnation in a
case to which the person is not a party. But it is permitted under
our law. Unindicted co-conspirators are frequently the subject of
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when the tortfeasor is a party amenable to the full powers of
discovery. The burden of placing that harm in the context of a
causative municipal custom and policy is significantly more onerous
than the task of simply proving that an actionable wrong occurred.
And finally, an abstract entity like a municipality may present a
much less compelling face to a jury than a flesh and blood
defendant.
The counter-argument advanced by appellees rests on the
proposition that a court may "not permit the adjudication or
determination of the rights or liabilities of a person unless that
person is actually or constructively before it." See, e.g., Brown
v. American Nat. Bank, 197 F.2d 911, 914 (10th Cir. 1952) ("It is
a familiar rule of frequent enunciation that judgment may not be
entered with binding effect against one not actually or
constructively before the court."). From this truism, appellees
extract the falsity that because Wilson failed to name Carchedi as
a defendant, he "cannot now complain that the court refused to
permit the jury to make a factual determination regarding her
conduct." The reason that this second assertion is wrong is that
Wilson was not seeking an adjudication of Carchedi’s rights, nor a
judgment binding on her personally. Wilson rather was seeking a
factual finding regarding the implications of Carchedi’s conduct
for the possible liability of the Town of Mendon as her employer.17

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adverse jury findings, as are employees whose employers are sued
directly on a theory of respondeat superior for their alleged
torts.
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The issue remains, however, whether Wilson, under the circumstances
of this case, should have been permitted to seek a finding against
Carchedi as a fulcrum to use against the Town of Mendon in a
subsequent trial.
C. The Trial and Its Prequel
To understand how the issue of Carchedi’s liability came
to be framed as it is on appeal, it is necessary to visit the
rulings on the subject made by the Magistrate Judge as the trial
progressed, and then to explore the background against which the
case was tried.
The trial began in a state of confusion as to exactly who
and what were to be tried:
THE COURT: Now, Mr. Hrones [Wilson’s counsel],
my understanding is the individuals that are
left in this case are: James Crosby, Dennis
Grady, Philip Dunlavey, the Boldys are out,
Steven Sweet, and Eugene Costanza?
Hrones replied that the Town of Mendon remained in the case on the
ch. 258 negligence claims, but confessed uncertainty regarding the
individual defendants. Hrones stated that his co-counsel, Ms.
Lipede, who had yet to arrive, would make the ultimate decision.
The court then asked:
THE COURT: Have you -- let me put it this way:
Have you eliminated any of the causes of
action?
MR. HRONES: Yes. . . . Do you want to know
what’s in the case?

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18Chief Costanza was alleged to have been negligent in his
training and supervision of Sweet. Sergeant Dunlavey was alleged
to have knowingly approved a false incident report submitted by
Crosby.
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THE COURT: Yeah. Can you give me a list, do
you think?
MR. HRONES: I don’t know.
. . .
MR. HRONES: I’ll tell you what’s in. The
Federal 1983 Claim is in.
MR. KESTEN [Chief Grady’s counsel]: For what?
Mr. HRONES: For everything. I mean, what do
you mean for what? I mean, it’s just in
there. I mean, for illegal arrest, for
excessive use of force, for malicious
prosecution. Those are all in there. We also
have the separate common law offense of
malicious prosecution. That’s still in there.
. . .
THE COURT: [H]ere’s how we’re going to do it.
I’m not going to press you right now. What
you’re going to do is you make an opening and
you make an opening on whatever you feel is in
the case, okay, and then, obviously, there’s
going to be motions to dismiss those which are
not in the case or which you don’t even
mention.
Lipede then appeared and stated that the claims against
Chief Costanza and Sergeant Dunlavey would not be dropped. She
also stated that Wilson had decided to dismiss the invasion of
privacy and defamation counts, but intended to proceed on all of
his other common law claims. Accordingly, Chief Costanza and
Sergeant Dunlavey were introduced to the venire as defendants.18
Then, after a lunch break, Hrones announced that Wilson was

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19Wilson specifically reserved a conversion claim against
Crosby and the ch. 258 negligence claims against the Town of
Mendon. Claims under the Massachusetts Civil Rights Act were later
disposed of by a stipulation that the jury’s finding on the section
1983 claims would be conclusive as to the state law claims. The
conversion claim was dropped on the seventh day of trial.
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dismissing all claims against Costanza and Dunlavey, along with
most of the common law claims against the remaining defendants.19
At the conclusion of her opening statement, Lipede framed
the issues for the jury as follows:
Ladies and gentlemen, I would ask that you
keep an open eye -- an open mind when you
review the evidence. After you review the
evidence of the videotape, along with Mr.
Wilson’s testimony and even after you hear the
testimony of the defendants, you will find
that defendant James Crosby, who used pepper
spray unnecessarily, should be liable to
Richard Wilson for the use of excessive force;
you will also find that Steven Sweet from the
Town of Hopedale is liable to Richard Wilson
for the use of excessive force; and you will
find that defendant Dennis Grady, who is the
chief of the Mendon Police Department, is
liable for failing to properly train defendant
James Crosby; and you will also find that the
town of Hopedale was negligent in failing to
train its officer Steven Sweet for negligence.
Thank you, ladies and gentlemen.
While Lipede alluded to the second pepper spray incident involving
Carchedi in her narrative of the facts, she did not suggest to the
jury that Wilson was pressing any claim against Carchedi directly,
or by extension, against Crosby based on anything Carchedi had
done.
On the third day of trial, however, Hrones attempted to
elicit an opinion from Melvin Tucker, a use-of-force expert called
by Wilson, as to whether Carchedi’s use of pepper spray during the

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20The answer would have been that it was not. Both Tucker and
Chief Grady’s use-of-force expert, Lt. Daniel Wicks, had reached
identical conclusions about Carchedi’s conduct.
21The judge stated that he was not excluding testimony about
the facts surrounding Carchedi’s use of pepper spray, but only
opinion testimony about the appropriateness of her actions (and
potential liability).
THE COURT: I didn’t say you can’t ask questions. I’m not
going to let him give an opinion on it. That’s all. The
people talked about Carchedi throughout this whole - -
. . . . I haven’t stopped anyone from asking what
happened, what went on. They saw what went on.
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scuffle in the vestibule was justified.20 The question drew an
immediate objection, precipitating a lengthy discussion at sidebar.
Crosby’s lawyer (Pfaff) argued that Carchedi
is not a defendant in this case, and you are
not going to nail the Town on a [section 1983]
claim or you are not going to try to get the
jury to nail Crosby because Carchedi did
something wrong. Secondly, your theory of
negligence in this case does not stem from
anything that Kristen Carchedi did, and your
258 letter . . . does not indicate at all that
Kristen Carchedi was negligent . . . . So you
are precluded from getting that claim.
After further discussion, the court sustained the
objection.21 The reasons for the judge’s ruling were not initially
clear, but it soon became apparent that he agreed with Pfaff’s
argument that the failure to assert a claim against Carchedi in the
ch. 258 presentment letter also precluded the prosecution of a
claim against her under section 1983. The ruling clearly confused
the prerequisites of an action under ch. 258 with those of federal
section 1983. Section 1983, unlike ch. 258, has no presentment
requirement. A section 1983 complaint need only comply with the

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22The seeds of confusion were sown by Pfaff, who insisted that
the law governing ch. 258 applied with equal force to section 1983.
The principal case cited by Pfaff at side bar was Tambolleo v. Town
of West Boylston, 34 Mass. App. Ct. 526 (1993), which can be read
to restrict the scope of a ch. 258 complaint to the precise claims
identified in the presentment letter. But see Martin v.
Commonwealth, 53 Mass. App. Ct. 526, 529 (2002)("[C]lose scrutiny
[of the cases] discloses that the 'strict compliance' precept is
concerned more with whether presentment has been made to the proper
executive officer (proper party noticed) in a timely fashion
(timeliness) than with the content of the presentment (adequacy of
content)."). Pfaff then segued from Tambolleo into the section
1983 claim by arguing that "to get liability against the Town . .
. the underlying act done by the individual has got to be liable
under 1983. You don't have Kristen Carchedi as a defendant. It's
the law." At the conclusion of the conference, the judge stated
that "[b]ased on the law primarily as recited by Mr. Pfaff, I am
going to sustain the objection." On inquiry from Hrones, the judge
made clear that he was sustaining the objection as to both the ch.
258 negligence claims and the section 1983 excessive force claim.
23We may, of course, uphold a correct ruling even if the
reasons given for it are wrong. Hope Furnace Assocs., Inc. v.
FDIC, 71 F.3d 39, 42 (1st Cir. 1995).
-18-
liberal "notice pleading" standards of the Federal Rules.22 See
Leatherman v. Tarrant County Narcotics Intelligence & Coordination
Unit, 507 U.S. 163, 168 (1993); cf. Judge v. City of Lowell, 160
F.3d 67, 75 & n.10 (1st Cir. 1998). The allegation in Wilson's
complaint, that Carchedi had "maced" him in the face, was
sufficient to satisfy this liberal pleading standard.23
The issue resurfaced in an identical context on the
seventh day of trial, when during the cross-examination of Chief
Grady's use-of-force expert, Lt. Daniel Wicks, Hrones again raised
the issue of the appropriateness of Carchedi's use of pepper spray.
This drew an immediate objection. At sidebar, Kesten pressed the
notice issue:
MR. KESTEN: Judge, we went through this. We
went through the presentment letter. Mr.

-- 18 of 31 --

24Perhaps to clarify this point, Hrones announced at the next
day's charging conference that Wilson was waiving his ch. 258
claims against the Town of Mendon.
-19-
Pfaff gave [you] the cases. They had every
opportunity to put the Town on notice. . . .
The law is clear on this. They never said for
a moment that Officer Carchedi [had done
something wrong] until Mr. Hrones actually
called me this summer and said he might amend
the complaint, and I said, Go ahead and try
it. He didn't do it.
To this, Hrones responded:
MR. HRONES: Let's not confuse two points.
We're dealing with 1983, and so I am going to
put presentment aside. . . . I don't know why
people are hung up on the fact that [Carchedi]
was not charged as a defendant. You simply
don't have to do that, your Honor. You can
[choose] whoever you want to charge.24
. . .
THE COURT: I've made a ruling on this before,
and I'm going to be consistent. I'm going to
sustain the objection.
At a charging conference the following day, Pfaff asked
the court for an instruction "that the jury is not to consider the
actions of Miss Carchedi for any purposes of liability against any
of the defendants. . . . [A]s I have pointed out before, Carchedi
has not been named as a defendant here for 1983 purposes, and I
think Mr. Hrones is still trying to push that point." The court
declined to give the requested instruction, but cautioned Hrones
against making any argument about Carchedi "with respect to
recovery in this case." When Hrones objected to the restriction,
arguing that Crosby and Carchedi might be found by the jury to have
acted as co-venturers during the second spraying incident, the

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25The court then made clear over Hrones' objection that the
same reasoning applied to any attempt to argue liability based on
Tagliaferri's conduct. Wilson has not pursued this ruling on
appeal.
-20-
court responded, "That is my ruling. That's been my ruling. I've
been consistent all the way through on that issue."25
Finally, on the ninth and closing day of trial, the issue
arose as to the extent counsel would be permitted to refer to
Carchedi in closing argument. When the court indicated that it was
inclined to exclude all mention of her, both sides objected,
reminding the judge that the jury had heard a substantial amount of
testimony about Carchedi and had seen repeated showings of the
videotape. The court relented, stating:
I'm not going to go through each one of the
alleged excessive force [incidents] because
it's not for me to find exactly what occurred.
It's for the jury to determine what exactly
occurred. So consistent with that, my ruling
is[,] is that obviously anything that's on the
tape is in evidence and can be commented on.
There will be no argument to the jury that
actions by Officers Tagliaferri and Carchedi
were in any way, in any way part of the
liability of any of the defendants left in
this case. And that's how I'm going to do it.
What makes this case unusual is that Carchedi was not,
contrary to expectation, named as a defendant by Wilson. The
reason Carchedi was not named becomes apparent only on a close
reading of the trial transcript and the pleadings filed in a
related and previously tried case.
Without delving into unnecessary detail, Richard Wilson's
encounter with Crosby and Carchedi on the night of May 18, 1996,
played itself out against a backdrop of parochial police politics.

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26The defendants were also alleged to have circulated false
rumors that Auty was involved in an illicit affair with Carchedi
and had, as a result, used his position as a selectman to advocate
her appointment to a permanent position.
-21-
The Mendon Police Department, small as it was, was riven by a
factional struggle over appointments to its few full-time
positions. As it happened, at the time of Wilson's arrest,
Carchedi and Crosby were pitted against one another as finalists
for one of those positions. The selectmen eventually awarded the
appointment to Crosby. Tagliaferri, who had unsuccessfully vied
for another open position, filed a complaint, later joined by
Carchedi, with the EEOC and the MCAD alleging disparate treatment
in the Town's consideration of their candidacies. In August of
1997, the two women officers, together with Tagliaferri's step-
father, Martin Auty, a Mendon selectman and police lieutenant,
brought a lawsuit (the Auty case) against the Town, the police
union, and most of their departmental colleagues (Chief Grady and
Crosby among them) alleging, inter alia, espionage, defamation,
gender discrimination, retaliation and invasion of privacy.26 Among
the allegations in the complaint was a claim that Carchedi and
Tagliaferri had been unfairly disciplined for suggesting that the
videotape of the altercation with Wilson had been tampered with as
part of a cover-up.
In April of 1997, Wilson's criminal case came to trial.
Carchedi and Tagliaferri testified favorably for Wilson, leading to
his acquittal on all charges. After Wilson brought the instant

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27Auty, who was not at the station on the night of the
incident, was alleged to have falsely testified that he had
inspected the door to Wilson's cell the following day without
observing any damage.
28The jury also awarded Chief Grady $5,000 in damages against
Auty on an invasion of privacy claim.
-22-
complaint, the Auty case went to trial before Magistrate Judge
Swartwood. The trial went badly for the plaintiffs.
Two weeks before the jury was seated, Chief Grady, Crosby
and the Town of Mendon were permitted to amend their answer to the
complaint by asserting a counterclaim alleging, inter alia, a civil
conspiracy on the part of Auty, Carchedi and Tagliaferri. In
essence, the defendants maintained that the three plaintiffs had
conspired to perjure themselves at Wilson's criminal trial by
testifying that Wilson had not appeared intoxicated at the time of
his arrest and that Crosby had used unnecessary force during the
confrontation in the cellblock.27 The defendants claimed that the
goal of the conspiracy was to assist Wilson in his civil case as a
means of punishing the Town for its failure to give Carchedi a
permanent position and to retaliate against Crosby for having taken
the appointment in her stead.
On March 16, 1999, after a twenty-five day trial, the
jury ruled against plaintiffs on all claims and found for the Town
of Mendon and Crosby on the civil conspiracy counterclaim. The
jury awarded $25,000 in damages to the Town of Mendon and $5,000 in
damages to Crosby, which were apportioned among the three
plaintiffs.28

-- 22 of 31 --

-23-
Given the jury's finding in the Auty case, Carchedi (and
Tagliaferri) were, to put it mildly, "damaged goods," a fact of
which all involved in the instant trial, including Magistrate Judge
Swartwood, were keenly aware. On the first day of trial, prior to
the empanelment, the subject of the prior jury verdict arose
obliquely during a discussion of the viability of Wilson's claim of
malicious prosecution.
MR. KESTEN: He has a malicious prosecution
claim. To do that he needs to show he was
acquitted. There's a first larger question.
If he wants to press it, if he wants to, the
defense is that he wasn't acquitted because
the prosecution wasn't malicious. He was
acquitted because there was a conspiracy from
these people to lie for him . . . which was
proven. It goes in for that. That's issue
preclusion [sic]. That's been proven that the
three officers, J. Martin Auty, Kristen
[Carchedi], and Sherri Tagliaferri, conspired
to lie in the Wilson case. That was the
finding of the jury.
After some further discussion, the court ruled that "if the
malicious prosecution claim is around and the defendants say that
the reason why he was acquitted [was] because everybody was in the
tank with him, then I'm going to allow them to explore that." In
response to this ruling Hrones announced, prior to opening
statements, that the claims of malicious prosecution and false
arrest were being dropped.
Under the circumstances, the decision not to name
Carchedi as a defendant, or to call her as a witness at trial,
despite the goading of the defendants to do so, was a predictable
choice given the near certainty that her presence would have opened
the door to evidence of the jury's finding in the Auty case.

-- 23 of 31 --

-24-
Wilson's alternate strategy was to concentrate his fire on Crosby
and Chief Grady, a choice that the defendants had clearly
anticipated, and one to which Wilson, after some initial first-day
confusion, clearly committed himself. Only after the trial was
well underway did Wilson seek to reinject Carchedi into the case.
We find Wilson's mid-trial switch in strategy troubling
and ultimately unfair. What Wilson, through counsel, was seeking
to accomplish was to wield Carchedi as a blunt instrument against
the Town of Mendon without having the jury exposed to the taint of
the verdict against her in the Auty case. Hence, Wilson decided to
omit Carchedi from the case as a defendant and to drop all claims
that would have permitted the defendants to present evidence, as
they were prepared to do, that Wilson's criminal acquittal had been
obtained through Carchedi's perjured testimony.
As a practical matter, the contours of a trial are often
defined by the litigating positions taken by the parties' lawyers.
At times counsel will, for tactical advantage, seek to try the case
on the broadest grounds possible. Or there may be, as was the case
here, sound reasons for drawing the issues to be tried as
circumspectly as possible. For Wilson, Carchedi was potentially
the quintessential elephant in the jury box. She was no great
bargain for the defendants either, given the finding of their own
expert that her use of force had been inappropriate. Both sides
went into the trial with every reason to exile Carchedi to the
periphery of the litigation.

-- 24 of 31 --

-25-
In recognition of the realities of the give-and-take of
trial, appellate courts are reluctant to second-guess the tactical
decisions of trial counsel for fear of opening a floodgate of
buyer's remorse. Thus, it is the rule that a litigant will be held
to the strategic choices made by counsel in all but the most
egregious instances. See, e.g., United States v. LaVallee, 448 F.2d
671, 679 (2d Cir. 1971); Leblanc v. I.N.S., 715 F,2d 685, 694 (1st
Cir. 1983); see also United States v. One Lot of $25,721.00 in
Currency, 938 F.2d 1417, 1422 (1st Cir. 1991). Here, the Magistrate
Judge invited Wilson's co-counsel in her opening statement to state
the specific claims that would be tried. She did so, conspicuously
omitting any claim against Carchedi. Wilson thus having committed
himself to that course, we cannot fault the Magistrate Judge for
enforcing the bargain, even though we may disagree with his stated
reasons for having done so.
In sum, in principle we agree with Wilson's argument that
the failure to name Carchedi was not fatal to his section 1983 case
against the Town of Mendon; however, in the circumstances of this
case, Wilson - having chosen a strategy intended to keep the full
truth about Carchedi and his own criminal trial from the jury -
cannot now complain of being hoisted on a petard of his own
contrivance.
D. Expert Testimony
Having found no error in the trial court's rejection of
Wilson's request that the jury be asked to make a factual finding
as to whether Carchedi had used excessive force during the second

-- 25 of 31 --

-26-
spraying incident, we conclude that the claim that the court erred
in excluding expert testimony on the subject fails as a matter of
course.
E. Rejected Instructions Concerning Crosby
Wilson objected to the judge's refusal to instruct on two
alternate theories of liability implicating Crosby, both of which
involved Carchedi: (1) that Crosby could be found liable for having
failed to protect Wilson from Carchedi during the second spraying
incident; or (2) that Crosby could be found liable as a joint
tortfeasor with Carchedi.
"[A] trial court's refusal to give a particular
instruction constitutes reversible error only if the requested
instruction was (1) correct as a matter of substantive law, (2) not
substantially incorporated into the charge as rendered, and (3)
integral to an important point in the case." Elliott v. S.D.
Warren Co., 134 F.3d 1, 6 (1st Cir. 1998) (quoting United States v.
DeStefano, 59 F.3d 1, 2 (1st Cir. 1995)). "A [litigant] is not
entitled to any specific words of instruction, but only to
instructions that properly convey the applicable law of the case."
Kinan v. City of Brockton, 876 F.2d 1029, 1037 (1st Cir. 1989)
(quoting Kibbe v. City of Springfield, 777 F.2d 801, 810 (1st Cir.
1985)).
It is settled in this Circuit that an officer may be
liable for failing to intervene in appropriate circumstances to
protect a detainee from the excessive use of force by a fellow
officer. Gadreault, 923 F.2d at 207 n.3. However, in Gadreault,

-- 26 of 31 --

29In analogous cases alleging due process violations arising
out of prison riots, the Supreme Court has contrasted circumstances
like those involved in high-speed pursuits in which officers are
forced to make split-second judgments, where the degree of fault
must be extremely high before liability attaches, with those in
which officers have sufficient opportunity to reflect on their
course of action, as in cases involving inmate welfare, where the
degree of fault required is correspondingly lower. County of
Sacramento v. Lewis, 523 U.S. 833, 852-853 (1998) (citing Whitley
v. Albers, 475 U.S. 312, 320 (1986)). Applying this analysis to
police pursuit cases, the Court noted, "[l]ike prison officials
facing a riot, the police on an occasion calling for fast action
have obligations that tend to tug against each other. . . . They
are supposed to act decisively and to show restraint at the same
moment, and their decisions have to be made <in haste, under
pressure, and frequently without the luxury of a second chance.'"
Lewis, 523 U.S. at 853 (citation and internal quotations omitted).
In the former type of case, the Court held that liability cannot be
premised on "mid-level fault." Id. This same general principle
informs our analysis in failure to intervene cases.
-27-
this Court found no liability where an attack "was over in a matter
of seconds," because the defendant officers "did not have a
realistic opportunity to intercede." Davis v. Rennie, 264 F.3d 86,
98 n.10 (1st Cir. 2001) (discussing Gadreault). The struggle in
the cellblock vestibule lasted only a few seconds. Carchedi was
not initially involved as a combatant. She appeared on the scene
while Crosby and Tagliaferri were thrashing about in the effort to
subdue Wilson. In these circumstances, even if the jury were to
credit Wilson's testimony that Carchedi had ordered Crosby to hold
up Wilson's head (the better to spray him), it could not reasonably
find that Crosby had had an opportunity to reflect on the wisdom of
obeying Carchedi's command.29
The request for a "joint tortfeasor" instruction fails
for a similar reason, although as a preliminary matter, we do not
agree with appellees' argument that "<joint tortfeasor' liability

-- 27 of 31 --

-28-
does not appear to exist under [section] 1983." As we pointed out
in Martinez v. Colon, 54 F.3d 980, 985 n.4 (1st Cir. 1995):
A constitutional duty to intervene may . . .
arise if onlooker officers are instrumental in
assisting the actual attacker to place the
victim in a vulnerable position. . . . In
such a scenario, the onlooker officers and the
aggressor officer are essentially joint
tortfeasors and, therefore, may incur shared
constitutional responsibility. See generally
Monroe v. Pape, 365 U.S. 167, 187 . . . (1961)
(advising courts to read section 1983 against
the backdrop of historical tort liability).
Here, however, as in Martinez, there is no evidence to support the
existence of a joint enterprise between Crosby and Carchedi.
Carchedi, as noted, intervened only after the fray had begun.
While there is no requirement that a plaintiff seeking to establish
joint venture liability prove the existence of an anticipatory
compact, aiding and abetting liability does require proof that a
defendant "associated himself with the venture, participated in it
as something he wished to bring about, and sought by his actions to
make it succeed." United States v. Garcia-Rosa, 876 F.2d 209, 217
(1st Cir. 1989). Mere presence, which is the most that can be said
about Crosby, does not establish a joint venture. United States v.
Hensel, 699 F.2d 18, 36 (1st Cir. 1983).
The issue for the jury was whether Crosby had used
excessive force against Wilson at any time during his detention.
The court properly instructed the jury in this regard:
Mr. Wilson alleges that Officer Crosby used
excessive force against him by spraying him
with pepper spray, by pushing him, by forcing
him to the floor or into the cell and by
kicking or kneeing him. . . . You have viewed
the videotape and have listened to the

-- 28 of 31 --

30Appellees argue that Wilson waived this ground of appeal by
failing to object at the time the offending comment was made. We
are loath to impose a rule that would require counsel to abandon
professionalism and decorum by routinely interrupting the other
side's closing argument to avoid the risk of waiving an objection
entirely. Absent the most egregious circumstances, attorneys
should, and generally do, wait until the conclusion of an
opponent's argument to voice such objections. See, e.g., Computer
Syst. Eng'g v. Qantel Corp., 740 F.2d 59, 69 (1st Cir. 1984)
(finding counsel's objections to improper closing argument untimely
where the attorney had the opportunity but failed to raise
objections outside the presence of the jury, at the time of
argument, and at a sidebar conference immediately following the
argument).
31Wilson's rendition of the transcript substitutes "phantom
spray" for "phantom prey," an allusion to Carchedi's involvement in
the second pepper spraying incident. It is clear from the context
of the remark, however, that the reference was to Sweet as a
-29-
evidence, and it is for you to determine the
circumstances of any physical contact between
Officer Crosby and Mr. Wilson . . . .
(emphasis added).
Consistent with this instruction the court put two special
questions regarding Crosby to the jury. The first asked whether
Crosby's use of pepper spray constituted an excessive use of force;
the second asked whether Crosby had used excessive force against
Wilson "at any other time." (Emphasis added). We see no error.
III. DEFENSE COUNSEL'S ARGUMENT
Finally, Wilson objects to the following comments made by
Chief Grady's counsel (Kesten), during closing argument:30
Mr. Wilson has been reviewing that tape over
and over again beginning with Attorney Strand
over there, and they made up a story. . . .
And their claim is -- and you heard that after
viewing this video and meeting with Attorney
Strand, a letter was written by Attorney
Strand [in] which they came up with the
phantom prey. They came up with lots of
stories. None of it happened.31

-- 29 of 31 --

"phantom" defendant, "the Admiral Stockdale of this case," who,
according to Kesten, should never have been named in the lawsuit.
-30-
While the insinuation that Wilson had concocted "stories"
with the connivance of his lawyer should not have been made, the
point that Wilson had no independent recollection of how he had
come to suffer a laceration to his chin was invited by his own
testimony.
Q. Isn't it a fact, sir, that you came
to the conclusion that Officer Sweet
had kicked your head only when Mr.
Strand told you that that had
happened?
A. We viewed the videotape, yes.
Q. Is that a no, sir, or yes?
A. Yes. When we viewed the videotape.
. . .
Q. Page 158, Line 3, at that same
deposition, sir, were you asked the
following question and did you give
the following response:
"QUESTION: Was it the first time you
watched the videotape with your
lawyer that you understood in your
mind that it was a Hopedale officer
that had cut your chin?
"ANSWER: When Bob point[ed] it out,
yes."
A. Yes.
Q. And Bob is Mr. Strand, Correct?
A. Yes, sir. I already said that, yes.
Wilson's credibility was the pivotal issue at trial, and
his memory of events was a fair subject for comment. There was no

-- 30 of 31 --

-31-
basis, however, for the insinuation that attorney Strand had
incited Wilson to perjury. But in context the comment was fleeting
and, given the trial theatrics in which counsel for both sides
engaged, would likely have been recognized by the jury as yet
another display of barristerial excess. Moreover, we are
confident, that if there was any prejudice, it was cured by the
court's admonition to the jury, both in its preliminary and
concluding instructions, that the lawyers' statements and arguments
were not to be considered as evidence. See Brandt v. Wand
Partners, 242 F.3d 6, 23 (1st Cir. 2001).
Because we find no reversible error, the judgment of the
district court is affirmed. No costs are awarded.

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